Does a Dirty Trash Pull Provide Probable Cause to Search a Residence?

The Supreme Court of the United States has held that trash left for collection at the curb is not subject to a reasonable expectation of privacy and therefore may be searched by the police without a warrant. See California v. Greenwood, 486 U.S. 35 (1988). So-called “trash pulls” are now a routine feature of drug investigations. When officers find drugs, drug residue, drug paraphernalia, or other indicia of drug activity in the trash, does that provide probable cause to support the issuance of a search warrant for the associated residence?

North Carolina’s appellate courts have decided a number of cases involving trash pulls. In most instances, a dirty trash pull was just one part of a larger array of incriminating evidence. For example, in State v. Sinapi, 359 N.C. 394 (2005), officers retrieved a “garbage bag containing eight wilting marijuana plants” from the suspect’s trash, but the suspect also had several prior drug arrests and had been named as the seller of heroin used in a recent overdose death. Likewise, in State v. Lowe, 369 N.C. 360 (2016), police found “a small amount of marijuana residue in a fast food bag” in the defendant’s trash, but the suspect also had numerous prior drug arrests and was the subject of an anonymous tip alleging that he was selling drugs. In both cases, the Supreme Court of North Carolina found that probable cause existed. In State v. Teague, 259 N.C. App. 904 (2018), the court of appeals considered a case that began with a rather weak anonymous tip about the defendant’s possible involvement in drug activity. Again the suspect had a prior record of drug arrests, and a trash pull yielded “a red Solo cup containing a green leafy substance” that field tested positive for marijuana, “a Ziplock bag containing trace residue” of what appeared to be marijuana, and a butane gas container, that allegedly could have been used to make “butane hash oil.” The reviewing court found that while the tip “may have been stale,” it was adequately corroborated by the refuse search.

I don’t think it’s controversial to suggest that a dirty trash pull, combined with other factors, may provide probable cause to search a residence. But what about a dirty trash pull standing alone? I’m not aware of a North Carolina appellate case that directly addresses that issue. It is easy to imagine circumstances that lean one way or the other. For example, if a trash can is at the curb in a busy, high-drug area, the top of the can is open, and the only drug-related item found in the can is the stub of a marijuana blunt laying on top of the refuse, a court might be inclined to think that the blunt could easily have been tossed in the can by a passing pedestrian. On the other hand, if the can is sealed and outside a residence in a sparsely-populated area, and the trash pull reveals large amounts of residue-encrusted packaging suggestive of a large-scale drug operation, a court might be more likely to conclude that there is probable cause to search the residence.

Although the specific facts matter, different courts have taken slightly different approaches to this issue as a matter of law. For whatever reason, the Eighth Circuit has decided a lot of trash pull cases, and in all of them has found that a dirty trash pull provides probable cause. Some other federal circuits, including the Sixth – and recently the Fourth – have been somewhat more skeptical. What follows is a sample of federal cases and secondary sources on this issue that may be a helpful starting point for further research.

  • United States v. Seidel, 677 F.3d 334 (8th 2012). Probable cause was properly found based on a trash pull that revealed apparent pay-owe ledgers, a syringe, and a paper clip with a gooey substance on it that field tested positive for marijuana. The court collected and cited prior cases that established a near-blanket rule that a dirty trash pull “standing alone, provide[s] probable cause for the issuance of a search warrant in all cases.”
  • United States v. Briscoe, 317 F.3d 906 (8th 2003). Recovery of “forty marijuana seeds and twenty-five marijuana stems” from suspect’s trash provided probable cause to search his home.
  • United States v. Leonard, 884 F.3d 730 (7th 2018). “[O]fficers on two occasions one week apart searched sealed trash bags left in a public alley outside the [suspect’s] home. Both times the trash bags contained indicia of residency and tested positive for cannabis.” Addressing “the question whether the trash pulls standing alone were sufficient to establish probable cause,” the court said yes, at least on these facts. “While one search turning up marijuana in the trash might be a fluke, two indicate a trend,” as would a single search revealing “a particularly large quantity of drugs.”
  • United States v. Abernathy, 843 F.3d 243 (6th 2016). Recovery of several marijuana “roaches” plus “plastic vacuum[] packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue” during a trash pull did not provide probable cause for a search warrant. The court stated that “[a]lthough the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs.” Further, the items in the trash could have been there for days or weeks before being retrieved.
  • United States v. Lyles, 910 F.3d 787 (4th 2018). A single trash pull revealing three marijuana stems did not provide probable cause to search a residence. Perhaps the residents were ongoing drug users but the small quantity found and the lack of any information about how long the stems had been in trash, among other factors, made it “not probabl[e]” that further drug evidence would be found in the home.
  • Jeremy E. Koehler, Note, If It Looks Like Garbage and Smells Like Garbage: The Weakness of Trash-Pull Evidence in Establishing Probable Cause for Search Warrants of Homes, 58 Washburn L.J. 769 (collecting cases, analyzing the issue, and arguing that “[t]rash-pull evidence alone should never be sufficient to constitute probable cause for a search warrant that invades the sanctity of a residence”).
  • Jackson Jones, Whether Narcotics Discovered in a Trash Pull, Standing Alone, Can Form Probable Cause to Search a Home, 42 U. Ark. Little Rock L. Rev. 231 (2020) (collecting cases, identifying a circuit split, analyzing the issue, and arguing that a dirty trash pull alone should not be sufficient to establish probable cause)

As a conclusion, I will note this prior post, written before Lyles was decided and the articles cited immediately above were written. It is slightly dated now, but contains citations to a few additional cases that may be of interest to the super-thorough reader.